I LAKSHMI NARAYAN Vs. A VEERARAGHAVALU

JUDGEMENT

(1.) C. M. A. No. 1030 of 1989 is against the Order dated October 19, 1989 passed in I. A. No. 12157 of 1989 in O. S. No. 5733 of 1989 on the file of the IV Assistant Judge, City Civil Court, Madras, dismissing the said I. A. C. M. A. No. 1031 of 1989 is also against the dismissal Order passed on the same date in I. A. No. 19791 of 1989 in the same suit. These C. M. As. are filed by the plaintiff in the suit and the suit is for recovery of a sum of money said to have been lent by the plaintiff to the defendant under a promissory note. The former I. A. was to issue an order of interim injunction, restraining the garnishee, the second respondent in the said I. A. , from paying a sum of Rs. 36,575 with interest to the defendant- Ist respondent therein, pending disposal of the suit. The latter I. A. is for directing the said garnishee to deposit the said sum into the trial Court. Admittedly, the said sum represents certain retirement benefits of the defendant, who was working as an employee under the said garnishee. The affidavit in support of the i. As. in the court below, stated that the defendant was going to retire on June 30, 1989 and that he had given a written undertaking in the said promissory note itself that he would repay the amount due under the promissory note from out of the said retirement benefits. The Court below has dismissed each of these two I. As. by two separate orders.

(2.) THE reasoning is that the abovesaid retirement benefits cannot be attached under Section 60 of C. P. C. and that hence the injunction and direction sought for under Order 39 and Section 151, C. P. C. cannot be granted. Against the said two orders, the abovesaid respective two c. M. As. have been filed.

(3.) I do not find any error in the order of the Court below. Admittedly, the said retirement 'benefits fall under the Proviso to Section 60 (1)of C. P. C. which enumerates the properties which cannot be attached1. The learned Counsel for the appellant no doubt contended that Section 60 of C. P. C. would apply only in the case of attachment 'in execution of decree' and not when the suit is pending and has not resulted in a 'decree'. But, this contention has no merit in view of Order 38, Rule 11-A of C. P. C which says,